Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Thursday, January 13, 2011

Holmes v. Petrovich Development Co. (Cal. Ct. App. - Jan. 13, 2011)

I'm in a darn good mood. It's completely sunny. Seventy wonderful degrees. I started my short drive to work overlooking the beautiful ocean, saw snow-capped mountains in the distance, drove down a beautiful palm-lined street, and hit all green lights on the way to work: drive so fast that only a single song -- a guitar-riffing "Strangehold" -- had time to play on the radio. Life is awesome.

So you'd think, given those predicates, that when I started reading the opinions this morning from the California Court of Appeal, I'd be in a super-cheerful, readily agreeable mood.

Not on everything. I actually find the court's resolution of most of the case fairly persuasive. It's a pregnancy discrimination and retaliation case. Both sides have good positions. On the one hand, I totally see where the plaintiff's coming from. When you tell your boss you're pregnant, his reaction should not including saying (in writing, no less): "I need some honesty. How pregnant were you when you interviewed with me?" I don't care how small the office is or how important the position. That's not a legitimate inquiry. Neither at the interview stage or thereafter. "Honesty" has nothing to do with it. So, to me, plaintiff is quite right to be upset at the inquiry.

That said, people make mistakes, and in later communications, defendant seems to have a sincere change of heart, and really does (IMHO) try to correct his prior error. Not in a "CYA" way, I think, but rather in an honest understanding that what he did was wrong. Plus, on the legal side, there are tough standards for when a single incident consititutes an actionable hostile work environment, so I can see why the trial court granted summary judgment to the defendant, and why the panel affirms.

So I can understand that. Even though perhaps reasonable minds might differ. (Which, among other things, is why I wouldn't have described plaintiff's arguments, as Justice Scotland does, as "It appears [plaintiff] expects FEHA to be a civility code." That description is overly harsh, unnecessary and inaccurate, I think. But maybe my reaction is a product of the good weather, and perhaps Justice Scotland wrote his lines during the winter rain and floods.)

But what I can't get on board for -- even in my completely good mood -- is the court's discussion of the attorney-client privilege issue.

The plaintiff, upset at her interactions with her boss, writes an e-mail to an attorney from her work computer. Her computer is never monitored, and her e-mail is never inspected, and she even goes back and deletes this e-mail when her attorney tells her to. But the Court of Appeal holds that because the employer had issued a boilerblate directive -- never actually followed -- that says that work computers are only for work, that they have the right to inspect all e-mails, blah blah blah, plaintiff's communication isn't privileged. It's like, Justice Scotland asserts, "consulting [an] attorney in one of defendant's conference rooms, in a loud voice, with the door open."

Really?! Seriously?

To me, this holding just goes way too far. It might be one thing if everyone actually knew that someone was constantly looking at your e-mails. In that factual setting, I get it. But that wasn't the case here. Nor is it the case in most of corporate America. The mere fact that someone can look at your stuff doesn't necessarily mean you don't have a reasonable expectation of privacy. Especially when, as here, you in fact know that they don't.

This holding also seems troubling -- and exceptionally far-reaching -- from a practical perspective. Virtually every institution has the exact same internet/e-mail policy as the defendant here. Yet the common practice -- to which virtually every person in America can attest -- is that we do expect a certain level of privacy in our work e-mail. Go back and check your e-mails over the past year. You mean to tell me there's nothing you have sent in the last year that you'd prefer remain private? If so, you and I are definitely different. We all, or at least most of us, do expect -- and believe -- that our e-mails will typically remain private absent unusual circumstances. Even when our employer has a boilerplate, never-enforced policy. I think that those actual expectations, proven time and again in practice, speak volumes about what people's expectations are. And as a practical (as well as doctrinal) matter, I think those expectations are reasonable. Something that the law should enforce absent unusual circumstances.

Plus, Justice Scotland's analogy seems way off base. To me, the more accurate analogy would be to say that the communications here are like talking to your attorney in a whisper in an empty Costco owned by your boss when you know your boss is on vacation in Nigeria. Even if your boss tells you, in writing, that he has the right to hide behind shelves and in large Pampers packages anytime he wants and to eavesdrop on anything he can hear, when you talk to your attorney in such a setting, you still have a reasonable expectation of privacy.

So I'd have to dissent with respect to that part of the opinion. A part that I think is potentially really pernicious.